Do Clarence Valley shire councillors know what is being done in their names?

Sometimes NSW government websites appear to list matters that Clarence Valley residents and ratepayers – and I suspect even elected local government councillors – know little or nothing about.

I wonder how much money the Clarence Valley Council general manager expended on the original investigation outlined below and, did Council In The Chamber or Committee ever endorse this monetary outlay?

One also has to wonder if councillors were aware of Clarence Valley Council's refusal to follow the Information Commissioner's recommendation to allow a staff member access to information in a report on his conduct (which found no corrupt conduct), when in February 2014 at Item 14.005/14 they unanimously agreed to change the wording of the existing April 2013 Privacy Management Plan so that it appears to significantly depart from the Model Plan supplied by the NSW Division of Local Government.

Excerpts from a public document displayed on the Information and Privacy Commission New South Wales website:

Review Report under the  Government Information (Public Access) Act 2009

Applicant: Mr Jon Hallam

Respondent: Clarence Valley Council

Report date: 8 November 2013

IPC reference: IPC12/R000150

Catchwords: Government information – public interest test – personal

information – contravene an Information Protection Principle –

false or unsubstantiated allegations - defamation

Government information – access refused

Summary

1. Mr Hallam applied to Clarence Valley Council (the Council) under the

Government Information (Public Access) Act 2009 (GIPA Act) for access to

specific information.

2. The Council decided to not disclose the information to Mr Hallam.

3. The Information Commissioner makes the following recommendations in relation

to the Council’s decision:

a. pursuant to section 93 of the GIPA Act, the Council make a new decision,

by way of internal review within 15 working days of this report (subject to

any extensions available in the GIPA Act).

b. pursuant to section 95 of the GIPA Act, the Council revise its procedures

for information access requests so that future notices of decision comply

with the requirements of section 61 of the GIPA Act.

Background

4. On 29 October 2012, Mr Hallam applied under the GIPA Act to the Council for

access to the final investigation report into allegations of misconduct against

him (Mr Hallam).

5. In its decision issued on 30 November 2012, the Council decided to not

disclose the report to Mr Hallam.

6. In seeking a review of the decision by the Information Commissioner, Mr

Hallam confirmed that he was seeking access to the report.

Decisions under review

7. The decision under review is the Council’s decision to not disclose the report to

Mr Hallam.

The public interest test

8. Mr Hallam has a legally enforceable right to access the information requested,

unless there is an overriding public interest against disclosing the information

(section 9(1) of the GIPA Act). The public interest balancing test for determining

whether there is an overriding public interest against disclosure is set out in

section 13 of the GIPA Act.

9. The general public interest consideration in favour of access to government

information set out in section 12 of the GIPA Act means that this balance is

always weighted in favour of disclosure. Section 5 of the GIPA Act establishes

a presumption in favour of disclosure of government information.

10. Before deciding whether to release or withhold information, the Council must

apply the public interest test and decide whether or not an overriding public

interest against disclosure exists for the information.

11. Section 13 requires decision makers to:

a. identify relevant public interest considerations in favour of disclosure;

b. identify relevant public interest considerations against disclosure; 

c. attribute weight to each consideration for and against disclosure; and

d. determine whether the balance of the public interest lies in favour of or

against disclosure of the government information.

12. The Council must apply the public interest test in accordance with the principles

set out in section 15 of the GIPA Act……….

21. Clause 3(e) of the table at section 14 as a public interest consideration against

disclosure states:

There is a public interest consideration against disclosure of information if

disclosure of the information could reasonably be expected to reveal false

or unsubstantiated allegations about a person that are defamatory.

22. In order to establish that this consideration applies, the Council must satisfy

each element of the consideration. The elements are:

a. that the disclosure of the report would reveal information;

b. that the information revealed contains false or unsubstantiated

allegations about a person; and

c. those false or unsubstantiated allegations about a person are

defamatory

23. When addressing the first element the Council should be mindful of the

definitions of ‘reveal’ and ‘government information’ in the GIPA Act. The issue

for the Council is not whether the report (a written document) has already been

revealed, but whether information in any form contained in the report has

already been revealed or is otherwise available. If information from the report

has already been revealed or is otherwise available it cannot be revealed by

the disclosure of the report and therefore the first element cannot be satisfied.

The Council’s notice of decision does not address the issue of whether any of

the information in the report has already been revealed.

24. When addressing the second element the Council must identify the information

that contains allegations against a person and demonstrate that those

allegations are either false or unsubstantiated. The Council engaged an

independent consultant to undertake an investigation and prepare a report. It is

clear from the context of the notice of decision that the investigation is into an

allegation that Mr Hallam engaged in corrupt behaviour. The notice of decision

states that ‘the report does not make findings of corrupt conduct’. This indicates

that the report may contain allegations that were not substantiated. However,

the Council has not identified which information in the report is subject to the

consideration.

25. In its notice of decision the Council did not explain how the allegations against

a person are defamatory and therefore have not adequately addressed the

third element. In order to satisfy the third element the Council must consider the

allegations according to the general principles of defamation law and determine

whether the allegations are defamatory. If the Council determines that the

allegations are not defamatory then the third element of the consideration

cannot be satisfied. The reasoning for this determination should be included in

the notice of decision.……..

Findings

51. I find that the Council has not satisfied its obligation under section 97(1) of the

GIPA Act because it has not justified its decision to not disclose the information

requested by Mr Hallam.

52. In summary the Council has not correctly applied the public interest test found

at section 13 of the GIPA Act and therefore has not justified its decision

because it:

a. did not demonstrate that it weighed the public interest considerations for and

against disclosure of the information. The Council’s notice of decision does

not identify any public interest considerations in favour of disclosure or

provide any explanation of how the public interest considerations for and

against disclosure were weighed in order to reach the decision.

b. relied on considerations that are not valid public interest considerations

against disclosure under section 14 of the GIPA Act when applying the public

interest test.

c. did not demonstrate that each element of the public interest considerations

against disclosure had been satisfied and therefore it cannot rely on them.

d. did not demonstrate that each public interest consideration against disclosure

that it relied upon applies to all of the withheld information.…

Recommendations

53. Pursuant to section 93 of the GIPA Act, the Information Commissioner

recommends that the Council make a new decision in regards to Mr Hallam’s

request for access to information, by way of internal review within 15 working

days of this report (subject to any extensions available in the GIPA Act).

54. Pursuant to section 95 of the GIPA Act, the Information Commissioner

recommends that the Council revise its procedures for information access 

requests so that future notices of decision comply with the requirements of

section 61 of the GIPA Act.

55. In making a new decision, the Council should have regard to the matters raised

and guidance given in this report.

56. We ask that the Council advise Mr Hallam and us by 22 November 2013 of the

actions to be taken in response to our recommendations………

What the Information and Privacy Commission does:

Under the Government Information (Information Commissioner) Act 2009 any person may complain about an agency’s conduct in relation to its functions under the GIPA Act.

If the Information Commissioner decides to deal with the complaint, the aim will be to help the parties resolve the complaint using any measures considered appropriate including bringing the parties together for conciliation. The Commissioner may also conduct investigations into a complaint and, in certain circumstances, report the matter to the Minister responsible for the agency. 

Complaints about agencies can be lodged with the Information Commissioner….

Excerpt from MODEL PRIVACY MANAGEMENT PLAN FOR LOCAL GOVERNMENT:

3.6 Information Protection Principle 6 - Information held by agencies 

Section 13 Information about personal information held by agencies 

A public sector agency that holds personal information must take such steps as are, in the circumstances, reasonable to enable any person to ascertain: 
(a) whether the agency holds personal information, and 
(b) whether the agency holds personal information relating to that person, and 
(c) if the agency holds personal information relating to that person: 
(i) the nature of that information, and 
(ii) the main purposes for which the information is used, and 
(iii) that person's entitlement to gain access to the information. 

NOTE

That original council investigation is apparently also connected with an expensive 'operational' decision which saw Clarence Valley Council appear before the NSW Industrial Commission in December 2013, resulting in a dismissed staff member regaining employment with council. A fact reported in the local media.